Lsi Corporation and Agere Systems Inc. v. International Trade Commission

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

LSI CORPORATION AND AGERE SYSTEMS INC.,
Appellants,
V.
INTERNATIONAL TRADE COMMISSION,
Appellee,
AND
TOWER SEMICONDUCTOR, LTD.
AND JAZZ SEMICONDUCTOR,
Intervenors,
AND
NANYA TECHNOLOGY CORPORATION,
POWERCHIP TECHNOLOGY CORPORATION,
AND SPANSION, INC.,
Intervenors,
AND
INTEGRATED DEVICE TECHNOLOGY, INC.
AND GRACE SEMICONDUCTOR MANUFACTURING
CORPORATION,
Intervenors.

2010-1352

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## On appeal from the United States International Trade Commission in Investigation No. 337-TA-648.

### ON MOTION

Before GAJARSA, SCHALL, and MOORE, Circuit Judges.
SCHALL, Circuit Judge.

### ORDER

The International Trade Commission moves to dis-
miss this appeal as moot. LSI Corporation et al. (LSI)
respond and request that the court vacate the Commis-
sion's final determination. Nanya Technology Corpora-
tion et al. and Integrated Device Technology, Inc. et al.
(Nanya) reply.

The Commission found no violation of 19 U.S.C.
§ 1337 based on its finding that the asserted claims of
United States Patent No. 5,227,335 (the '335 patent) were
invalid. The Commission states that the '335 patent
expired on July 13, 2010 and thus the appeal is moot.

LSI agrees that the appeal is moot and does not op-
pose dismissal of the appeal. However, LSI requests that
the court vacate the Commission's final determination as
it did in similar circumstances in Texas Instruments, Inc.
v. U.S. Int'l Trade Comm'n, 851 F.2d 342, 344 (Fed. Cir.
1987). Nanya asserts that vacatur is not warranted
because Commission determinations do not generally
have preclusive effects and that in this case LSI simply
wishes to set aside an adverse decision. Nanya asserts
that LSI waited two months to file its appeal and thus the
case became moot due to LSI's actions, not happenstance.

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The court agrees that this case is moot. Further, the
court determines that the case became moot by happen-
stance. LSI timely filed its appeal. Moreover, even if LSI
had filed its appeal immediately after the Commission
issued its final determination, the patent would have
expired before the case could be fully briefed, scheduled
on an argument calendar, and decided.

Because this appeal became moot through happen-
stance, the determination whether to vacate the Commis-
sion's decision is guided by principles of equity. See U.S.
Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18,
25 (1994) ("The reference to 'happenstance' in Munsing-
wear must be understood as an allusion to this equitable
tradition of vacatur"). "A party who seeks review of the
merits of an adverse ruling, but is frustrated by the
vagaries of circumstance, ought not in fairness be forced
to acquiesce in the judgment." Bancorp at 25. In this
case, the court determines that vacatur is appropriate.

Accordingly,

IT IS ORDERED THAT:

(1) The appeal is dismissed as moot.

(2) The Commission's final determination is vacated
and the case is remanded to the Commission. The Com-
mission is directed to dismiss its investigation as moot.

FOR THE COURT

NOV 1 5 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Jonathan D. Link, Esq.
Clint A. Gerdine, Esq.
Keith L. Slenkovich, Esq.

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
NOV 15 2010

1

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Gary A. Hecker, Esq.
Michael J. Bettinger, Esq.
s17